 |
 |
|
Attorneys of Record for
Taras Kick
C. Tab Turner
|
THE THREE FALSE ARGUMENTS BY TIRE
When a tire on a motor vehicle fails, the results are often catastrophic. Tire manufacturers are well aware of this, and as a result have developed strategies which in large part try to shift blame for the catastrophic injury away from themselves, even when the tire manufacturers are entirely at fault.
Tire manufacturers most commonly attempt to do this three different ways. One, they argue that the tire failure is not the result of a defect, but rather the result of some road hazard of unknown etiology against which it was impossible to protect the tire from failing. Two, if they cannot establish even any remote evidence of a road hazard being responsible for the tire failure, tire manufacturers will often try to argue that the failure resulted from improper maintenance of the tire by the owner. Three, finally, if the tire manufacturer can establish neither a road hazard nor improper maintenance of the tire by the owner, the tire manufacturer will still argue that the catastrophic result of the accident is not its fault since a tire failure, even if due to a defect, is an event which should be controlled by the driver of the vehicle without incident. Often, these three arguments by tire manufacturers are made in some combination.
While sometimes a tire failure can truly be the result of a road hazard, or poor maintenance by the owner, very often the real reason for the tire's failure is a manufacturing or design defect by the tire manufacturer. Equally, with regard to a driver's supposed ability to control a vehicle after a tire failure, while it is true that some tire failures are such that the vehicle can be steered to safety without a collision with only three functioning tires, in many instances this simply is not possible. When dealing with a catastrophic injury involving a failed tire, it is important to put aside tire manufacturer propaganda, and objectively and fairly investigate whether the injury was the fault of the tire manufacturer.
The first tire industry argument, a road hazard, is probably the easiest of the three to confirm or disavow. Although there no doubt can be found two experts who will disagree as to whether or not a road hazard has caused a tire failure, nonetheless, by definition, a road hazard which is supposed to have caused a tire failure leaves a pronounced identifying mark. This can come in the form of a puncture, tire cord breakage of certain characteristic appearance, rim dents, et cetera. The common denominator under the road hazard theory is that the physical evidence usually is not subtle. However, it is important to bear in mind that even if a road hazard did cause some sort of injury to the tire, this does not mean the road hazard is what caused the tire's failure. There is nothing inconsistent about having both road hazard damage to a tire, and also a manufacturing or design defect in a tire. In fact, often a road hazard in conjunction with a manufacturing or design defect is what is responsible for a tire failure that leads to a catastrophic consequence. Furthermore, even if a road hazard is the sole cause of the tire's failure, it is worth investigating whether there was a design which nonetheless could have prevented the inability to control the vehicle after its tire encountered the road hazard.
If there is no evidence of a road hazard being responsible for a tire's failure, the tire manufacturers almost inevitably then try to blame the tire's failure on supposed poor maintenance of the tire by the owner of the vehicle. This usually involves the tire manufacturer arguing that the tires on the vehicle were driven by the owner for a prolonged period of time in an underinflated condition, or in an overinflated condition, or in an overloaded condition (too much weight). While there certainly is truth to the position that driving a tire for a prolonged period in a severe state of one of these three conditions has the potential eventually to cause a tire failure, often this is a tire manufacturer's last bastion of defense to escape the true conclusion that the tire actually failed as a result of a manufacturing or design defect. Additionally, the physical characteristics resulting from such conditions were much more pronounced when tires were pre-dominantly bias ply, rather than radial ply as they are today. Historically, if a tire had been driven in an underinflated condition for a prolonged periodone would expect to find heavier shoulder wear, whereas if driven in an overinflated condition one would expect to find heavier crown wear. But with the advent of radial ply tires, for these characteristics to exist in any significant degree, the underinflation or overinflation would likely had to have been quite substantial. With wear patterns in radial ply tires, wheel position of the tire can be a far more important factor than the inflation of the tire. Nonetheless, such arguments about inflation and loading are still routinely made by tire manufacturers in an attempt to blame the victim for the catastrophe, rather than admitting the tire in question was defective.
Possibly the favorite argument of tire manufacturers faced with an individual who has been injured catastrophically as a result of one of its failed tires is to try to argue that notwithstanding the failure of the tire, the driver of the vehicle should have been able to control the vehicle and bring it to a stop without a collision. Tire manufacturers have spent hundreds of thousands of dollars on jury focus groups to develop this strategy of blaming the victim, and have spent even more money on testing which was designed specifically for litigation defense to try to promote this argument. These tests usually have an end product of a video in which a vehicle on which a tire tread separation has been induced is brought to a nice safe stop by the driver hired by the tire company for the test. In addition to this litigation testing, the tire manufacturers also pay lip service to relying on a thirty-plus year-old study commissioned by the Rubber Manufacturers Association which involved interviewing motorists at toll booths in Illinois as to whether they had been in accidents after suffering a tire failure, in which the result of the study was that very few tire failures lead to an injury accident. The manufacturers' arguments of blaming the victim for not controlling the vehicle after a tire failure are misplaced for several reasons.
First, there is the truism that the catastrophically injured individual was doing his or her best to control the vehicle, and could not control it. Probably the injured person is a man or woman of ordinary skill, and doing his or her best to try to successfully control a sudden and unexpected event. If the person was not able to handle the tire failure, under the law of all fifty states, so long as this was a person of ordinary skill, the person cannot be blamed for the collision as a matter of law. Next, there has been testing performed with intentionally induced tread separation in Bronco II's by a respected laboratory that demonstrates these tread detachments do have a pronounced effect on the steering of the vehicle, and a very profound effect on controllability of the vehicle.
Additionally, it should be borne in mind that these intentionally induced tread detachment tests are conducted under tightly controlled experimental conditions in which the driver of the vehicle which is about to have its tread detached knows the event is about to occur and is on a roadway surface which has been cleared of all vehicles. Under real life conditions, of course, the driver has no idea that a tread is about to detach from the tire otherwise the driver would pull over before the detachment occurs. Additionally, in real-life conditions there is usually traffic to the left of the driver, to the right of the driver, in front of the driver, and coming up rapidly behind the driver, all of which the driver of the vehicle with the unexpected tread separation has to try to navigate to avoid hitting. The tire manufacturers pre-arranged litigation testings do not have any of these real-life conditions.
Finally, perhaps the most powerful evidence demonstrating that it is false for the tire manufacturers to attempt to accuse the driver of a vehicle with a failed tire who gets into a collision for being somehow at fault is the fact that there exist numerous letters on file with the The National Highway Traffic Safety Administration authored by the tire manufacturers themselves which warn that a failed tire will lead to a collision that may cause catastrophic injury. These letters prove not only that the tire manufacturers' arguments about a vehicle with a failed tire being controllable were created for litigation purposes and are false, but also prove that the tire manufacturers themselves do not believe these claims they are making in litigation!
These three defenses by tire manufacturers are often advanced to prevent a catastrophically injured individual from learning the truth, that is that the failed tire either had a manufacturing defect or a design defect in it.
Many types of manufacturing defects are possible, leading to many types of manifestations of problems. However, the most common type of manifestation of a tire failure involving catastrophic injury is a tread belt separation (and that is what the balance of this summary discusses). These very often initiate at the belt edge of the tire. This is the area of the tire receiving the highest stress. Tread belt separations, when due to a manufacturing defect, are usually due to poor bonding during the tire building process. The poor bonding can be due to any of a number of factors. These include actual contaminants in the tire (contaminants can range from undispersed ingredients actually called for in the compounding process, to products used during the building process but not actually called for as part of the tire's compounding (such as polyproplene used to separate the rubber), to water, to ingredients which have absolutely no business in a tire building room (such as candy wrappers and tobacco juice); under vulcanization; lack of tackiness due to use of old ingredients; trapped air; improper sized strips being used in the building process; etc. Tire companies also have had bonding problems which are due to the fact that their skim stock is simply a bad formula: it does not bond well even if the tire is built exactly as specified.
This last problem actually would be considered a design defect, since the formula itself is the problem. It is important when trying to get to the truth of whether a tire company's formula is the problem which led to the tire failure to try to get the specifications for the tire formula so as, among other things, to investigate whether the failed tire was built in accordance with the formula. Tire manufacturers will usually fight hard to prevent this information from being disclosed, arguing that it constitutes a proprietary trade secret. If unable to get the actual tire formula or skim stock formula, it is very important to get the tire data for all failures of all tires built by that tire manufacturer using that particular skim stock/formula. A tire manufacturer will try to argue that it only should be required to turn over information pertaining to the particular model and size tire as the failed tire, and then only for a limited time period. This is not a genuine argument. The most relevant piece of information which determines a tire's performance is not its size or model name, but rather the skim stock of which it is built.
There are many other design defects beyond the actual skim stock or formula which may exist in a tire. A very short list of these would include a failure by the tire manufacturer to use belt edge insulation strips, a failure by the tire manufacturer to use safety belts, or a failure by the tire manufacturer to use a nylon cap ply. Almost invariably, when an injured victim advocates that a manufacturer should have used a safer design, the manufacturer will argue that the design either was not a viable alternative for any tire, or impractical for the particular tire. One specific example of such arguments comes when the injured victim argues a nylon cap ply should havebeen used. To this day manufacturers argue that the nylon cap ply is a new technology, even though the United States Patent Office issued a patent for it in 1972. Manufacturers will also argue that such a nylon cap ply is prohibitively expensive, and is only used on high performance tires. Neither argument is close to being true.
Not every failed tire is the result of a manufacturing defect or a design defect. But notwithstanding the tire manufacturers' claims to the contrary, many are. Finally, once again notwithstanding the tire manufacturers' claims to the contrary, almost never, if ever at all, is a collision which results after a failed tire the fault of the driver attempting to control the car with the failed tire. It is really beyond the pale for tire manufacturers to even make that accusation, one which they themselves do not truly believe.
|
| Home | News | Articles | Discussions | Resources | Services | Contact Us | Map | Terms | Privacy | © SafetyForum |